15 March 2019

Namibia: Genocide Verdict a Serious Learning Curve and Reawakening

analysis

After more than two years of waiting in exasperation, excitement, hope, expectations and uncertainty, the judge in the class action brought by the Ovaherero, Ovambanderu and Nama against the government of the Federal Republic of Germany has delivered her verdict.

Judge Laura Taylor Swain last Wednesday granted the German government its wish as per its countermotion against the application of the Namibian communities affected by Imperial Germany's genocide against them.

The German government has not been pleading against the dismissal of the claims of genocide, which is the substantive matter in the application, but has been maintaining that as a government of a sovereign nation, as per the laws of the United States of America, the Foreign Sovereign Immunities Act in particular which is relevant to this matter, it cannot be prosecuted in a court of the United States of America (USA). That in short any court in the USA has no jurisdiction to put its government on trial.

It is not that the court does not have jurisdiction, period and finish. Because in certain exceptions, this court can try the German government if it can be shown that the matter brought before it is of a commercial nature, and that such commercial aspect can still be traced to the German government's operations currently in the USA.

This is what the two respective legal teams had to convince the judge about. It was actually not an issue between the judge and the two respective legal teams but essentially between the two respective legal teams, one representing the affected communities on the one hand, and the other the government of the Federal Republic of Germany, on the other.

The matter hinged on who of the two respective legal teams would present a strong case based on the what the relevant act provides as an exception for the court trying Germany thus giving it the requisite jurisdiction to hear the case before it, and after having heard the legal arguments of the respective legal teams, to pronounce herself thereon based of what the two legal teams are arguing and maintaining are the laws or the provision of the relevant act.

In this surely the two respective legal teams must have given due considerations to previous cases before the courts, referred to in legal parlance or jargons as precedents, with a bearing on the case in question in the court before Judge Swain. Surely those who have been following the case, especially those close to one or the other side of the two sides, must have known that the case may eventually go one way or the other in terms of the judge's judgement. Not necessarily the way they would want it to go, but because of how convinced they are or may have been how strong their respective legal teams have presented their case. Yes, understandably to most ordinary descendants of the victims, and thus the victim communities, the judgement must not only have come as disappointing but also shocking.

Not because of the expectations that the judge would eventually redeem their long-standing pain, but that their lawyers would instead do so by convincing the judge about the law in this regard, thereby delivering them. But this has not been and this has nothing to do with the judge but the lawyers who had the onerous function of convincing the judge.

But the leaders of the affected communities who have been witnessing the case must there and then at the closure of the closing arguments by the two respective legal teams, have known what to expect from the final judgment based on how strong a case their lawyers must have put up based on the law.

The citing of Judge Swain in her judgement, citing in this regard other courts, cannot but be instructive. "Strong moral claims are not easily converted into legal cause." Crudely, what the Judge Swain is saying is that, yes surely the Ovaherero, Ovambanderu and Nama may have a moral case because from wherever your mental frame, and/or material vintage point, genocide, including that of the Ovaherero, Ovambanderu and Nama as well, is a despicable act, and thus immoral. But can it be, as the courts have observed, easily converted into a successful legal action? For the same reason that the affected communities are weary of legal action in Germany, as has lately been tested and proven by the Nama Traditional Leaders Association in their quest to prevent the repatriation of the Bible and whip of erstwhile Namibian and Nama leader, the same can be said of the courts in the USA in view of the bilateral relations between the two nations as powerful nations of the world, if not of the Caucasion world only.

This is without taking away from the integrity and person of the likes of Judge Swain. Certainly her citing is some food for thought for the affected Namibian communities in the way forward in the aftermath of her verdict dismissing their application.

The United Nations has been said to have accepted the genocide of the Ovaherero, Ovambanderu and Nama. Surely this presents these communities with a platform to test and prevail upon the political morality of the progressive nations of the world, among other international, regional and sub-regional platforms, as far as the genocide of the Ovaherero, Ovambanderu and Nama is concerned. The law does not operate in a vacuum and the fundamental question one also needs to ask is: To what extent is there an understanding and sympathy, only for starter, especially among the Afro-Americans, for the Namibian genocide cause? Only when one answers this question positively can one have any measure of expectation from the legal process in the USA in this matter.

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